Stephen Cook: The Charity Commission has to follow the letter of the law

Stephen Cook
Stephen Cook

The Charity Commission board member Orlando Fraser was probably right to say, in an internal email published in part by Third Sector this week, that the public would understand and support a "robust" rather than a "technical" approach to the fact that the Joseph Rowntree Charitable Trust had funded the controversial advocacy group Cage.

The context was that Cage had just held a press conference, aspects of which it has itself since said were misjudged, where its leader contended that Mohammed Emwazi, the British jihadi fighter believed to have beheaded several hostages in Syria, had been a "beautiful young man" whose radicalisation might have been caused by the attention of the British security services.

Whatever the truth about Emwazi and his past, it didn’t look good that a charitable trust had given money to an organisation that appeared to be sympathetic to a man who had committed a series of cruel and sickening murders. And it was appropriate that commission board members asked themselves: what should we be doing about this?

But moving from the "technical" – by which Fraser presumably means proceeding according to the letter of the law – to the "robust" – by which he means, by his own admission, opening a statutory inquiry into the JRCT that might be challenged in the courts – was a high-risk strategy that the commission, in the event, did not adopt.

This was mainly because it had already been conducting an operational compliance case into the JRCT for more than a year, and by November 2014 had established that the last tranche of the Cage grant, ring-fenced for specified human rights work, had been paid in January 2014. The charity had agreed to review its grant-making procedures, draw up an internal policy on grants to non-charities such as Cage and strengthen financial reporting from non-charity grantees. The commission had stated that it had finished its work.

In these circumstances, and without new evidence, a statutory inquiry was clearly inappropriate. But the commission instead did the next worst thing: it put pressure on the JRCT, including reminders about the personal liability of trustees and warnings of further bad publicity if it did not comply, to give an assurance that it would never fund Cage again. This led in the end to a scolding from the Lord Chief Justice in the High Court and an admission by the commission that it could not, under the advisory powers it claimed (somewhat unconvincingly) it had been exercising, fetter the discretion of a charity’s trustees in this way for all time.

How and why the commission decided to put the heat on the JRCT in what the Lord Chief Justice called a high-handed manner is not entirely clear. The emails involving board members, which feature Fraser’s recommendations and were disclosed in the High Court proceedings, were withheld from a date after which, according to the commission, all decisions were taken by the executives rather than the board members. The extent of the board members’ influence on those decisions is therefore not revealed.

But if, instead of putting pressure on the trustees, the commission had simply explained to the world the state of play in its engagement with the JRCT, emphasising that it was on top of the issues and that the charity had no plans to fund Cage again and would consult the commission if that changed, would that not have sufficed? It would have come under the heading of "technical", no doubt, but it would have saved everyone a lot of trouble and conflict, not to mention the public and charitable money spent on the High Court hearing.

The emails show that  the commission’s statutory duty to increase public trust and confidence in charities was in the minds of the board members in this episode. One concern for the sector, however, might be the way some of them appear to interpret that duty as carte blanche to intervene in any charity that attracts controversy in the press or is judged by them to be doing unpopular things. Another concern might be the mocking and hostile tone of some of the  emails about the JRCT, a long-established, high-principled and well-respected charity. It might seem paradoxical but, in a liberal society, the sometimes unpopular work done by a minority of charities – rehabilitating sex offenders, for example, or helping refugees – enhances rather than erodes public trust and confidence in charity as a force for the general good.

The commission, at the end of the day, is a quasi-judicial body, and the JRCT episode has provided a reminder that it can get into difficulties if it strays too far from what Fraser calls the "technical". The commission already has strong powers over charities, which are about to be strengthened by parliament, and the technical and the robust are not incompatible.

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